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Bummer Beach

Vinod Khosla bought the land abutting a popular surfing cove. Then he boxed the surfers out. The craziest thing? He might get away with it.

Martins Beach near Half Moon Bay

Martins Beach near Half Moon Bay

 

The situation eventually de-escalates. Still, the surfers, shivering in their wetsuits, are cited for criminal trespassing and fingerprinted. The trial is set for February 2013, four months away.

Until a couple of centuries ago, of course, the land surrounding Martins Beach didn’t formally belong to anybody. The Ohlone Indians held sway for more than 3,000 years, living inland but descending to the coast to harvest shellfish and hunt seal and otter. The idea of property rights arrived with the Spanish missions in the late 1700s, as the newcomers quickly set about relieving the Ohlone of their land.

Owing to a peculiar convergence of arcane law and frontier history, the property’s first official owners figure prominently in today’s legal battle. After Spanish California came under Mexican rule in 1821, a soldier named José Maria Alviso petitioned the Mexican authorities for title to 8,676 coastal acres, including the land fronting Martins Beach. Alviso received his provisional land grant in 1838 and, in a flight of poetic fancy, christened it Rancho Cañada de Verde y Arroyo de la Purisima—Green Canyon and Creek of the Immaculate Virgin.

By the time the United States had wrested California from Mexico ten years later, the rancho had passed to Alviso’s younger brother, José Antonio. The treaty that ended the Mexican-American War pledged to treat Mexican landowners fairly, and when the fledgling state of California challenged Alviso’s claim, he took it to court. The case went all the way to the U.S. Supreme Court, and Alviso won. In 1865 he received a federal land patent— a key fact then and now.

A trespassing surfer walks the road to Martins Beach

A trespassing surfer walks the road to Martins Beach

 

The Alvisos faded from history, and sometime in the late 1800s the beach acquired its name, memorializing a family that owned the land for a couple of decades after the Civil War. By the early 20th century, a new family, the Deeneys, owned most of the land around Martins Beach. They farmed hay and began leasing out plots overlooking the cove. More than 40 bungalows sprouted up along the road, followed by a general store and a restaurant. The owners usually charged a small fee to use the road—a dime in the 1920s, $5 in 2001—but it was open from dawn to dusk.

Over the years, the beach became part of the coast’s social fabric. Terry Louwerens, whose grandfather built one of the bungalows, recalls a childhood spent smelt fishing and playing on the beach. “Martins Beach has been a big part of my family for well over 60 years,” she said at a 2011 administrative hearing. McCloskey remembers attending a rip-roaring kegger on the beach in 1948, when he was a Stanford undergrad. “We had one hell of a party,” he says.

Mike Wallace, a 50-year-old Moss Beach financial market analyst, has more recent memories. A member of the local Surfrider chapter, Wallace has surfed Martins since 2000, and he used to take his kids there. He also coaches Half Moon Bay High School’s surf team, and Martins’ protected reef break meant the team didn’t have to drive to Santa Cruz when other nearby waves got too big. “This isn’t just some scrabbly dirt patch that nobody cares about,” he says. “There’s been pretty much 100 years of public access.”

That history ended in 2008, when an anonymous buyer offered the Deeneys an ungodly amount of money for their land, and they decided to sell. The new owner, known only as Martins Beach 1, LLC, and Martins Beach 2, LLC, immediately closed the road. At some point, a new gate was apparently installed, with a sensor that allows bungalow residents to come and go but keeps everyone else out. A sign on the gate declared the closure temporary, but the months turned into years, and the road stayed shut.

Wondering who was behind the mysterious LLCs, coastal activists began digging. After a tip from a realtor in 2011, Wallace sent a letter to Khosla’s Menlo Park campus, hoping to negotiate access. The next month he received a reply from Joan Gallo, one of Khosla’s attorneys. She thanked Surfrider for its interest in the property and proceeded to quash any hopes for a quick resolution of the standoff. The public facilities were run down and the road was in bad repair, she wrote, and the county’s insistence in 2009 that Khosla continue to provide access for a small fee had “put the ownership in an impossible situation.” She outlined a broader philosophical objection, too: The government just did not have “the right to require the property owner to provide access.” The only solution, she concluded, was litigation.

Indeed, by the time that Wallace discovered Khosla’s identity, the VC’s legal team had been going back and forth with San Mateo County for a couple of years—with no deal in sight. Don Horsley, San Mateo County supervisor for District 3, which includes Martins Beach, participated in another round of talks beginning in 2011. He says that Khosla’s factotums had no intention of compromising. “They said if the county would agree that they had the right to close the road, they would consider granting access,” Horsley recalls. “When we said no, they said, ‘We thought we lived under the stars and stripes, not the hammer and sickle.’”

 

Khosla’s legal team have been vying with the California Coastal Commission for several years. The state commission draws its authority from the California Coastal Act of 1976, which requires beachfront property owners to apply for permits before they make changes to their property that might constitute development. Regulations are strict, and the definition of “development” is purposefully broad. Not surprisingly, those to the right of the political spectrum see both the act and the commission as symbols of big government run amok.

Determining that Khosla’s changes to his land counted as development, the commission invited him to begin a negotiation. Frequently, disputes are settled by a compromise in which the property owner cedes access in exchange for development permits. Sometimes, though, deep-pocketed owners decide to litigate. The access wars have burned hottest in Southern California, where there is far more beachfront development. Most famously, entertainment mogul David Geffen fought a 20-year battle with the commission over providing access to the beach in front of his Malibu home—at one point he allegedly built a wall across the pathway and painted it to look like part of his garage. He lost in 2005, and beachgoers now walk right past his house to the sand.

Talks with the commission went about as well as they had with the county. Nancy Cave, the commission’s North Central District manager, sums it up. “We asked them to work things out with us, and they were not interested. At all.”

Clearly, Khosla had decided to fight.

 

Not everyone thinks the closure is such a bad thing. A resident of one of the beach cabins who agreed to speak to me anonymously sympathizes with Khosla to an extent. She loves the beach—“It’s my church”—and she doesn’t necessarily mind sharing it with others, but she says that the visitors can be a nuisance. “I don’t mind the surfers, but I don’t want ’em blocking my driveway.” Besides, she says, Khosla paid for the property and has a right to do what he likes. “It’s his private land.”

Sentiment along the coast, however, seems to be overwhelmingly pro-access. Protesters have held sign-waving demonstrations outside the gate, the Half Moon Bay Review has run incendiary op-eds, and outraged Facebook pages have overflowed with old Kodachromes of barbecues and surf sessions. One night in 2010, somebody gave two blacked-out billboards next to the gate a guerrilla makeover. On one: “Section 4, Article 10, California Constitution.” On the other: “No One Shall Exclude Access to the Coast!” Within a few hours, though, the graffiti had been painted over. Back to the status quo. The activists’ frustration mounted.

As it happens, the surfers’ court appearance in February 2013 resulted in the first good news they had heard in years. Bremer remembers being nervous that morning, but, as it turned out, without cause. When the five surfers showed up, dressed in suits and flanked by lawyers and supporters, the prosecutor announced that the district attorney was dropping the charges based on “insufficient evidence.” Given the dispute over access, the assistant DA explained, it just wasn’t clear that Bremer and company had trespassed.

The upshot of the county’s decision was that nobody would be arrested or prosecuted for walking down to the beach until the conclusion of both civil cases. The gate, however, would remain closed. Bremer sees it as a partial victory at best. “That lifted the stone off of us,” he says. “But it didn’t get the laws changed or get things made right.”

Page three: A court decision that might have been "fucking stupid beyond belief"